Parker v. Bryant

The opinion of the court was delivered by Prout, J. The testimony in this case relates to the item of $46.99 which the auditor allowed the plaintiff. This claim originated out of the performance of a contract made by John L. Drury, at the time stated in the report of the auditor, by which he was to “ jigger out,” as it is expressed, for the defendants a quantity of chair stuff. Soon after this contract was made the plaintiff became associated with Drury in its performance. Upon its fulfilment by Drury and the plaintiff, the claim arising under it was, in effect, severed as between the plaintiff and Drury — the plaintiff’s share of the claim being the amount of the item in dispute, which, by agreement between Drury and the plaintiff, was to be paid, and which the defendants agreed to pay him. The effect of this agreement, as between the plaintiff and Drury, in connection with the fact, that the defendants were notified of it, and promised the plaintiff to pay the amount to him, was to discharge them of their liability to Drury to that extent, and to render them liable to the plaintiff alone, it being justly due for his labor performed under the contract, and in respect to which he became connected as stated in the report of the auditor. This the defendants do not seem to dispute, but claim that the plaintiff and one Lawrence having, prior to the time when the parties came to the understanding found as to the payment of this claim, entered into a contract with the defendants, by which the defendants were to furnish timber, and the plaintiff and Lawrence manufacture it into bobbins for the purpose stated in the report, the avails of [294] which was to be divided, (the defendants’ share being one-third),— that the plaintiff having expressed to the defendants a willingness to have the amount of the item in controversy apply towards the defendants’ sh ire of the avails of the bobbins, he is not entitled to recover. The amount of the item was not so applied, and it does not appear from the report that the defendants consented it might. But another answer to this claim of the defendants is found in the fact that they received their share of the avails of the bobbins from one Wiley, who sold and disposed of them for the parties, at a price for which they were originally contracted to be manufactured and sold by the parties interested, and as was contemplated when they entered into the arrangement, found by the auditor, to manufacture them. This would seem to dispose of this ground of defence. But it is insisted that the claim is not a proper item of book charge, and that it cannot be recovered in this form of action. It is for labor performed in the defendants’ service and for their benefit, performed, it is true, by the plaintiff in respect to a contract in which the plaintiff and Drury were interested. But it is not found that they were partners, Drury has no interest in the claim, and-the defendants expressly agreed to pay it to the plaintiff, to whom it was alone due. Ambler v. Bradley, 6 Vt. 119; Bruce v. Morris, 3 Caine’s R. 54. The judgment of the county court is affirmed.